Z?8 


UNIVERSITY  OF  CA  RIVERSIDE.  LIBRARY 


3  1210  01851  1863 


The  Bering  Sea  Arbitration 
Welling,  James  C. 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

RIVERSIDE 


COLUMBIAN  UNIVERSITY  STUDIES 


THK 


BERING  SEA  ARBITRATION 

OR 

"PELAGIC  SEALING"    JURIDICALLY   CONSIDERED 

ACCORDING  TO   A  PARTICULAR  ANALOGY 

OF   MUNICIPAL   LAW 


BY 


JAMES  O.  AVELLIFG,  LL.  D. 

PRESIDENT   OF   THE   CO' "MBIAN   UNIVERSITY   AND   PROFESSOR    OF    INTER- 
NATIONAL  I,AW   IN   THE   LAW   SCHOOL   OF   THE   UNIVERSITY 


THE  UNIVERSITY    PRESS 


JUDD  &  DEXWEILER 
PRINTI-RS  TO  THE  SCIENTIFIC  SOCIETIES   OF  WASHINGTON 

WASHINGTON,  D.  C. 
1893 


WASHINGTON,  D.  C 


1.  The  University  publishes  in  this  form  the  results 
of  original  inquiry  or  independent  research. 

2.  The  University  assumes  no  responsibility  for 
expressions  of  individual  opinion  contained  in  publi- 
cations made  under  its  auspices. 

3.  All  publications  of  the  University  are  kept  on 
sale  at  prices  varying  with  the  cost  of  publication. 

4.  All  communications  relating  to  the  purchase  of 
publications  should  be  addressed  to  The  Treasurer  of 
the  Columbian  University,  Washington,  D.  C. 

The  price  of  this  publication  is  twenty-five  cents 
per  copy. 


u/^ 


THE  BERING  SEA  ARBITRATION; 

OR, 

"Pelagic  Sealing"  Juridically  Considered  According  to  a  Par- 
ticular Analogy  of  Municipal  Law. 


In  the  primeval  state  of  man  property  is  supposed  to  have  begun 
with  the  occupation  of  things  for  man's  personal  use.  The  Roman 
Law  of  Occupation  was  at  once  very  simple  and  very  strict.  Wild 
animals,  as  being  in  their  natural  state  res  nullius,  were  held  to  be 
convertible  into  property  by  occupation.;  and  this  for  the  sufficient 
reason  that  what  belonged  to  nobody  could  be  made  to  belong  to 
anybody  who  took  it.  Not,  indeed,  that  mere  taking  gave  owner- 
ship or  value,  but  that  it  was  only  by  the  instrument  of  occupation, 
to  the  ends  of  possession,  that  wild  animals  could  be  made  service- 
able, and  therefore  valuable,  to  man.  Hence,  in  enunciating  the 
maxim  of  the  Civil  Law,  res  nullius  occupanti  conceditur,  we  must 
emphasize  equally  each  word  in  the  sentence. 

Li  consistency  with  this  maxim,  it  was  held  in  early  Roman  Law 
that  the  right  of  occupation  which  attached  to  wild  animals  was  a 
pure  ius  hoiniuis,  belonging  to  any  man  wlio  captured  them,  any- 
where, for  his  personal  benefit,  and  not  an  ius  doininii  resulting 
from  ownership  of  the  soil  on  which  the  wild  animals  were  found. 
The  owner  of  the  soil  had,  indeed,  a  right  to  jM-ohibit  the  entrance 
of  a  huntsman  on  his  farm,  but  he  could  not  claim  the  wild  game 
which  was  killed  or  captured  on  his  premises,  even  when  the  killing 
or  capture  was  effected  in  violation  of  his  interdict.  His  remedy 
was  to  sue  for  tresi)ass.  Yet  as  the  land-owner,  by  his  interdict, 
could  maintain,  defaelo,  the  exclusive  privilege  of  hunting  on  his 
own  grounds,  the  game  found  on  his  soil  could  be  placed  practically 
at  his  exclusive  command.'!^  In  cases,  therefore,  where  the  game 
found  on  land  was  sparse,  casual,  and  uncertain,  it  could  not  be 

*  Digest,  xli,  i,  3,  |?  i,  2. 


Z  COLUMBIAN    UNIVERSITY    STUDIES. 

held  to  constitute  any  part  of  the  fnictiis  of  the  farm;  but  in  cases 
where  the  game  could  be  singled  out,  as  an  object  of  economic 
significance,  it  tvas  competent  to  hold  and  consider  it  as  friictus. 
Hence  the  doctrine  of  Julian,  when,  as  we  read  in  the  Digest,  "  he 
denied  that  hunting  w^?>fructiis  of  a  farm,  unless  \.\\q  fniclus  of  the 
farm  resulted  from  hunting."-^-  In  another  part  of  the  Digest  we 
read,  in  consistency  with  this  doctrine,  that  lucrative  returns  from 
fowling,  fishing,  and  hunting  pertained  to  the  fructuary,f  and  even 
where  the  hunting  was  not  very  important,  because  it  took  place  in 
the  woods  and  mountains  of  a  landed  estate,  we  are  told  that  it 
could  be  "  fairly  asserted  "  (that  is,  could  be  asserted  in  equity)  to 
constitute  a  part  of  the  usufruct ;  \  while  tliis  was  clearly  the  case 
where  a  hunting-staff  or  a  working-plant  was  connected  with  the 
estate  for  the  express  purpose  of  capturing  game.§ 

With  regard  to  animals  which  were  partially  domesticated,  and 
which,  by  reason  of  their  habits,  whetlier  natural  or  acquired,  could 
be  put  under  a  partial  human  control,  a  somewhat  different  rule 
obtained.  To  the  extent  in  which  these  animals,  by  virtue  of  their 
habit  for  locality,  could  be  made  self-subservient  to  the  uses  of  man, 
it  was  held  that  they  became  the  qualified  property  of  the  owner 
wlio  had  domesticated  them,  or  who,  by  purchase  or  otherwise,  had 
a  right  to  profit  from  their  custody.  The  rule  under  this  head,  as 
laid  down  by  Gains,  is  as  follows  : 

"As  to  animals  which,  from  habit,  are  wont  to  go  away  and  re- 
turn, such  as  pigeons  and  bees,  likewise  deer  that  are  wont  to  go 
to  the  woods  and  return,  we  have  this  rule  handed  down,  that  if 
they  cease  to  have  a  disposition  to  return  \revertendi  a>nmiim'\  they 
cease  also  to  be  ours,  and  may  become  the  property  of  the  first 
takers  ;  and  they  seem,  moreover,  to  cease  to  have  a  disposition  to 
return  when  they  may  have  abandoned  the  habit  of  returning."  || 

*  Digest,  xxii,  i,  26:  '' Veiiatioueni  fructus  fundi  negavit  esse,  nisi 
fructus  fundi  ex  venatione  constat." 

t  Digest,  vii,  i,  9,  l  5. 

X  Digest,  vii,  i,  62. 

^Digest,  xxxiii,  7,  12,  \\  12,  13. 

II  Gains,  ii,  \  68  :  In  iis  auteni  aninialibus  qnie  ex  consuetudine  abire 
et  redire  solent,  veUiti  columbis  et  apibns,  item  cervis  qui  in  silvas  ire  et 
redire  solent,  taleni  habenius  regnlani  traditani,  lit  si  revertendi  animuni 
habere  desierint,  etiani  nostra  esse  desinant,  et  fiant  occupantinni  ;  re- 
vertendi anteni  aninmni  vidcntur  desinere  habere  cum  revertendi  con- 
suetudinem  deseruerint. 


BERING    SEA    ARBITIJ ATION.  3 

The  same  doctrine  meets  us  in  tlie  Digest*  and  in  the  Institutes. f 

It  is  easy  to  perceive  the  reason  and  ground  of  this  rule  of  law. 
Certain  animals,  by  reason  of  their  animus  revertendi,  can,  without 
their  knowing  it,  be  made  subservient  to  the  economic  control  of 
man.  Sic  vos  non  vobis  inellificatis  apes.  The  animus  revertendi,  as 
cited  by  Gains,  is  not  an  index  of  mansuetude.  It  exists  alike  in 
wild  bees  and  in  tame  bees,|  but  in  the  case  of  the  latter  it  has  been 
seized  on  by  man  as  an  instinct  which,  under  appropriate  arrange- 
ments (that  is,  by  the  inclosure  of  bees  in  artificial  hives),  can  be 
made  tributary  to  economic  ends  at  a  spot  selected  by  man  and 
under  his  control.  The  animal's  state  of  mind  is  important  only 
because  it  serves  as  an  index  of  the  owner's  prospect  of  retaining  the 
animal  in  his  possession. 

Speaking  in  the  language  of  the  schools,  we  may  say  that  man  is 
the  efficient  c^Axv^t  of  bee  husbandry.  The  material  with  which  he 
makes  his  hives  is  the  material  cause.  The  tools  with  which  he  con- 
structs hives  are  the  instrumental  cause.  The  conditions  which  pre- 
scribe the  shape  and  structure  of  the  hives  are  tlie  formal  cause, 
while  economic  gain  is  the  final  cause  of  the  whole  proceeding. 
But  in  this  array  of  causes,  it  is  the  animus  revertendi  which  condi- 
tionates  the  whole  process,  and  whicli,  at  bottom,  is  the  condition- 
ating  factor  of  the  whole  process.  As  the  logic  of  causation  shifts 
with  the  point  of  view,  if  the  point  of  view  be  shifted  from  the  hives 
to  the  bees  themselves  it  nuist  be  said  that  the  bees  are  the  material 
cause  of  bee  husbandry,  and  that  the  animus  revertendi  is  the  instru- 
mental ca.i\%e  of  bee  husbandry. 

From  this  analysis  it  would  ajjpear  that  it  is  the  qualified  dominion 
of  man  over  animals  having  an  animus  revertendi  (that  is  capable  of 
being  turned  to  economic  uses)  which  gives  rise  to  a  qualified  prop- 
erty in  them.  The  right  of  free  occupation  comes,  as  to  them, 
under  restriction,  because  they  are  already  the  subjects  of  a  prior, 
though  qualified,  occupation. 

As  the  Commentators  say,  the  occupation  of  animals  which  are 
by  nature /iTcc  naturce  implies  four  conditions:   First,  The  animal  at 

*  Digest,  xli,  i,  5. 

t  Institutes,  ii,  i,  15. 

X  Pufendorf  is  careful  to  note  this  fact,  as  bearing  on  the  logic  of  the 
law.  He  says  :  "  Consiietndineni  ad  alvearia  sua  redenndi  non  adsuetu- 
dine  hominntn,  sed  proprite  naturae  instinctu,  habent ;  de  caetero  plane 
indociles."     Puf.  De  Jure  Naturae,  Lib.  iv,  6,  5. 


4  COLUMBIAN    UNIVERSITY    STUDIES. 

the  time  of  capture  must  be  really  and  entirely  res  niillius.  Secondly, 
It  must  be  taken  with  a  view  to  possession.  The  man  who  kills  a 
wild  bird  merely  to  show  his  skill  as  a  marksman  is  not  an  occupant 
in  even  an  inchoate  sense.  He  may  be  shooting  merely  for  a  wager. 
Thirdly,  The  desire  of  possession,  the  animus  possidendi,  must  be 
authenticated  and  effectuated  by  some  definitive  act  which  trans- 
lates the  desire  of  possession  into  an  accomplished  fact.  The  man 
who  stumbles  on  a  honeycomb  in  the  forest  and  who  desires  to  pos- 
sess it,  does  not  make  it  his  by  marking  the  tree  on  which  he  finds 
it,  however  fixed  and  sincere  may  be  his  purpose  to  return  and  take 
the  comb  into  possession  at  a  future  day.*  Fourthly,  The  thing 
occupied  must  be  of  some  value  in  use  or  exchange;  otherwise  the 
animus  possidendi  would  not  arise,  and  tlie  act  of  possession  would 
not  be  put  forth.  Rats  and  mice  have  an  animus  revertendi  \\\\\c\\ 
man  can  only  deplore  in  economics,  because  their  a?iimus  reveiiendi 
cannot  be  made  important  from  a  utilitarian  point  of  view.  Dogs 
have  an  animus  revertendi,  but  it  is  held  by  Blackstone  that  dogs  have 
no  intrinsic  value  at  Common  Law,  as  being  "creatures  kept  for 
whim  and  pleasure"  and  not  for  food.  Dogs  have  intrinsic  value 
in  Greenland,  because  there  they  are  made  ancillary  to  economic 
ends.  A  pack  of  dogs  kept  as  an  instrument  of  hunting  would  seem 
to  have  intrinsic  value. 

We  see,  therefore,  that  the  law  of  occupation,  as  to  animals,  has 
its  ultimate  foundation  in  the  destination  of  creatures  y^r^  naiurce 
to  subserve  purposes  of  human  utility.  Hence,  it  does  not  surprise 
us  to  find  that  when  the  Roman  jurists  came  to  expound  the  law  of 
usufruct  they  brought  that  law  into  careful  coordination  with  the 
law  of  occupation.  The  law  of  occupation  was  subordinated  to  the 
law  of  usufruct.  Whatsoever  grew  on  a  farm  and  whatsoever  could 
be  gathered  from  a  farm  (under  the  limitations  prescribed  by  usu- 
fructuary law,  to  wit,  ut  boni  viri  arbitratu  fruaiur')  was  held  to  be 
fructus  of  the  farm,  for  the  reason  that  it  had  value  in  use  and  value 
in  exchange.  Hence,  if  there  were  bees  on  a  farm,  it  was  held 
that  the  usufruct  of  them  pertained  to  the  fructuary.f  The  refer- 
ence here  is  not  to  swarms  of  wild  bees  flying  across  the  fields  or 
settling  by  accident  on  a  tree,  for  they  are  not  property,^  but  refer- 

*Gluck  :  Ausfiihrliche  Erlauteruug  der  Paudecten,  Ser.  xli,  xlii,  174  ; 
cf.  also  7  Johnson  (N.  Y.),  16. 
t  Digest,  vii,  i,  9,  O- 
X  Digest,  xlvii,  2,  26. 


BERING   SEA    ARBITRATION.  6 

ence  is  made  to  domesticated  bees  kept  in  a  hive  for  economic  uses. 
In  like  manner,  we  read  in  the  same  relation  that  pigeons  which  are 
wont  to  be  let  loose  from  a  pigeon-house  are  liable  to  be  counted 
among  valuable  assets  in  a  proceeding  at  law  for  dividing  an  estate 
among  the  toheirs,  and  this  for  the  reason  that  "  they  are  our  prop- 
erty so  long  as  they  have  a  hal)it  of  returning  to  us."  "  If  anybody 
shall  cai)ture  them,"  adds  the  text-writer,  "we  can  properly  bring 
an  action  of  theft  against  him."  * 

By  parity  of  reason  Pomponius  argues,  in  another  place,  with 
regard  to  a  tame  fowl,  in  which  the  animus  revcrtcndi  is  the  result 
of  training  and  not,  as  in  bees,  the  result  of  natural  instinct,  that 
"  if  you  should  hunt  down  my  tame  peacock,  when  it  had  escaped 
from  my  home,  until  it  perishes,  I  shall,  in  such  case,  have  it  in 
my  power  to  bring  an  action  of  theft  against  you,  if  anybody  shall 
have  commenced  upon  him  an  act  of  ai)propriation."  f 

The  jurisprudence  of  the  civilized  world  is  essentially  one.  The 
rule  of  the  Common  Law  coincides  with  the  rule  of  the  Civil  Law 
in  regard  to  domesticated  animals  which  have  an  animus  revertendi 
that  is  convertible  to  economic  uses.  Bracton  early  brought  the 
doctrine  into  English  jurisprudence  as  a  direct  importation  from 
Roman  law.;};  "The  little  busy  bee  "  holds  a  high  place  in  the 
legal  literature  of  the  world,  as  well  as  in  descriptive  and  didactic 
verse,  from  the  days  of  Homer  to  Dr.  Watts.  If  Vergil  devotes  a 
whole  book  of  the  Georgics  to  apiculture,  it  is  because  of  the  place 
which  apiculture  had  in  Roman  economics.  If  the  text  books  from 
Gaius  to  Blackstone  take  account  of  bees,  it  is  because  of  the  prop- 
erty right  which  attaches  to  them.  It  has  been  ruled  that  where 
bees  escape  from  their  owner's  hive  and  swarm  on  a  neighbor's  land 
the  owner  may  reclaim  them  if  he  can  identify  them,  though  he 
becomes  liable  to  an  action  for  trespass  in  entering  on  his  neighbor's 
land  to  repossess  himself  of  them.§  The  inability  of  the  owner  of 
a  personal  chattel  to  retake  it  on  the  premises  of  another  without 
committing  a  trespass  does  not  in  the  least  impair  the  owner's  legal 
interest  in  the  chattel.  It  only  embarrasses  the  use  or  enjoyment 
ofit.ll 

*  Digest,  X,  2,  8,  ^  I. 
t  Digest,  xlvii,  2,  37. 
J  I  Bracton  (Twiss's  ed.),  66,  67  ;  cf.  2  Blackstone,  392-394. 

I  2  Devereux  (N.  C),  162  ;  3  Biimey  (Pa.),  546. 

II  15  Wendell  (N.  Y.),  550. 


6.  COLUMBIAN    UNIVERSITY    STUDIED. 

I  have  cited  these  principles  in  order  to  show  in  a  clear  light  the 
ingredients  which,  according  to  the  written  reason  of  the  Roman 
Law  and  the  rulings  of  the  Common  Law,  are  held  to  create  a 
property  right  in  animals  having  a  habit  of  returning  to  a  given 
spot,  if  they  are  there  placed  under  human  custody  for  economic 
ends.  It  is  not,  we  see,  the  mere  animus  revertendi  which  consti- 
tutes value,  but  the  economic  uses  to  which  that  auimiis  reverte/uii 
can  be  put  after  it  has  been  husbanded  by  human  art,  and  to  which 
it  can  be  rightfully  put,  because  it  represents,  at  that  given  spot, 
the  husbandry  of  human  labor  and  human  skill.  Where  the  animus 
revertendi  Q-AWwoX.  be  made  the  basis  of  economic  use,  no  effort  is 
made  by  man  to  husband  it.  Where  the  animus  revertendi  already 
exists  in  the  case  of  certain  animals,  but  where  it  is  so  vagrant,  in- 
considerable, and  unmanageable  that  it  cannot  be  counted  on  with 
any  degree  of  economic  certitude,  no  effort  is  made  by  man  to 
profit  by  it  on  any  considerable  scale.  The  wild  goose  in  all  her 
migrations  has  the  instinct  of  return  to  her  breeding  place,  but  it 
cannot  be  made  the  basis  of  economic  purpose  or  valuation  beyond 
that  vagrant  purpose  and  inconsiderable  valuation  which  move  in 
the  right  of  individual  capture — a  right  open  to  all  men  wherever 
they  find  wild  geese,  unless  they  find  them  flying  over  land  which 
the  proprietor  has  interdicted  to  the  casual  sportsman. 

Modern  jurisprudence,  as  everybody  knows,  has  in  great  measure 
transformed  the  right  of  game-capture  from  an  ins  hominis  into  an 
lus  dominii.  Yet  this  transformation  has  wrought  no  change  in  the 
reason  and  ground  on  which  value  is  attached  to  certain  animals 
having  an  animus  revertendi.  The  rule  of  law  continues  to  depend 
entirely  on  the  degree  to  which  that  quality,  under  human  regula- 
tion, can  be  utilized  for  economic  ends,  and  this  utilization  for 
economic  ends  (as  we  see  in  the  case  of  bees)  is  most  immediately 
available  in  the  case  of  animals  which  have,  by  nature,  an  habitual 
disposition  of  return  which  so  ties  them  to  a  given  place  that  the 
habit  may  be  directly  used  for  economic  purposes.  The  economic 
aptitudes  of  such  animals,  if  they  be  found  in  sufficient  numbers  to 
make  their  inclosure  or  husbandry  an  object  of  gain,  can  be  made 
at  once  the  basis  of  economic  computation — a  basis  of  computation 
almost  as  fixed  as  the  soil  to  which  they  are  tied  by  the  habit  of 
return. 

For  it  is  precisely  in  proportion  as  the  animus  revertendi  of  useful 
animals  is  a  stable  quality  that  it  lends  itself  to  economics.     If  at 


BERING   SEA    ARBITRATION.  7 

any  place  a  breed  of  lioming  pigeons  could  be  found  which  should 
have,  by  nature,  the  homing  instinct,  that  breed  would  at  once  be 
taken  under  lunnan  tutelage.  The  industry  spent  in  creating  and 
conserving  a  homing  instinct  in  the  artificial  variety  would  be  spent 
in  protecting  and  conserving  the  newly  discovered  breed  which  had, 
by  natural  heredity,  that  valuable  peculiarity;  and,  other  things 
being  equal,  still  higher  sanctions  of  property  would  attach  to 
pigeons  of  such  a  breed,  because,  so  far  as  they  were  taken  into 
human  custody,  a  violation  of  the  property-right  in  them  would  be 
still  more  injurious  to  the  interests  of  public  and  of  private  economy 
based  on  the  perpetuation  of  this  more  useful  variety. 

It  would  seem  that  these  facts  in  the  economics  of  natural  history 
and  the  rules  of  law  which  have  been  based  on  them  are  not  with- 
out their  application  to  the  controversy  now  pending  between  the 
United  Stales  and  Great  Britain  with  regard  to  the  capture  on  the 
high  seas  of  fur-seals  which  have  their  birthplace  in  Alaska,  and 
which,  in  all  their  pelagic  migrations,  are  known  to  have  an  animus 
revertendi  which  gives  to  the  breed  a  calculable  value  at  the  point  of 
fixed  return.  This  animus  revertendi,  it  is  true,  is  not  the  creation 
of  human  art  in  seals,  any  more  than  in  bees;  but  for  the  very  rea- 
son that  it  has  a  fixed  quality  it  can  be  made,  under  proper  control, 
the  more  tributary  to  man's  emolument.  On  the  faith  of  this  in- 
stinct, and  of  the  property-right  which  it  conditionates  and  assures 
so  long  as  it  is  not  disturbed,  the  Government  of  the  United  States 
has  done  infinitely  more  for  the  Alaskan  seals  which  it  husbands 
than  the  most  enthusiastic  apiculturist  has  ever  essayed  to  do  for 
the  honey  bees  which  he  may  have  domesticated  and  inclosed  in 
patent  hives  of  the  latest  construction  and  most  costly  variety.  The 
highest  resources  of  state-craft,  of  administrative  policy,  of  police 
control,  and  even  of  international  diplomacy  have  been  put  in  requi- 
sition for  the  protection  of  the  fur-seal  breed,  on  the  ground  that 
the  fur-seal  husbandry  is  a  factor  in  our  national  economics,  as  well 
as  in  the  economics  of  the  world;  and  on  the  further  ground  that 
depredations  committed  on  the  seal  herds  in  their  pelagic  migra- 
tions must  lead  eventually  to  the  destruction  of  the  fur-seal  species 
in  Alaska  (as  has  happened  elsewhere),  and  so  must  inure  to  the 
economic  detriment  of  the  United  States.  It  is  further  argued  that 
the  capture  of  seals  in  their  periods  of  annual  migration  is  attended 
with  circumstances  of  wanton  barbarity  and  of  wasteful  excess, 
which  should  be  prohibited  in  the  interest  of  public  and  private 
morality. 


8  COLUMBIAN    UNIVERSITY    STUDIES. 

The  Government  of  the  United  States  avers  that  the  Alaskan 
seal  is  an  amphibious  animal,  which  has  its  fixed  home  on  Alaskan 
islands,  and  that  from  this  home  it  never  long  departs,  because  of 
its  fixed  animus  reve7-tendi ;  that  this  fixed  animus  7-evertendi  gives 
to  the  breed  an  economic  aptitude  of  great  value ;  that  the  seal 
herds,  in  their  periodical  migrations,  however  far  they  may  roam 
from  land,  can  still  be  definitely  related  to  the  soil  on  which  they 
increase  and  multiply;  that  the  destruction  of  seals  in  their  pas- 
sage to  their  breeding  places,  when  the  mother  seals  are  heavy 
with  young,  or  the  destruction  of  seals  as  they  go  forth  from  the 
Alaskan  rookeries  to  secure  food  on  the  high  seas  in  order  to  nurture 
their  new-born  progeny,  involves  a  reckless  waste  of  valuable  animal 
life,  does  despite  to  the  qualified  property  right  of  the  United  States, 
evicts  by  violence  the  habitual  animus  rcvcrtendi  which  is  the  instru- 
ment of  that  right,  and  so  tends  to  work  the  gradual  but  certain 
extinction,  for  commercial  ends,  of  a  species  in  which  the  economy 
of  the  civilized  world  has  an  interest ;  that  the  United  States  have 
in  the  seal  husbandry  of  Alaska  a  vested  right,  in  so  far  as  the  value 
of  the  fur-seals  may  be  said  to  have  entered  as  a  consideration  into 
the  purchase-money  paid  to  Russia  for  Alaska,  and  in  so  far  as  the 
annual  value  of  the  fur-seal  usufruct,  farmed  out  by  the  Government 
of  the  United  States,  has  been  administered  with  a  sedulous  regard 
to  the  preservation  of  the  breed. 

The  Government  of  Great  Britain  is  understood  to  affirm  that  fur- 
seals  are  indisputably  animals  y^r^  naiurce ;  that  these  have  uni- 
versally been  regarded  by  jurists  as  res  nuUius  until  they  are  caught; 
that  property  can  vest  in  them  only  so  long  as  a  person  has  reduced 
them  into  possession  by  capture  ;  that  the  qualified  right  of  j^rop- 
erty  for  which  the  United  States  contend  in  the  case  of  the  seal 
herds  during  their  periods  of  pelagic  migration  is  not  sound,  either 
in  fact  or  in  law,  and  that,  as  to  such  seal  herds,  on  the  high  seas, 
it  is  not  competent  for  the  United  States,  or  for  any  "  private  in- 
terest "  holding  under  them,  to  assert  any  priority  or  pre-eminence 
of  right.  To  this  effect  Sir  Julian  Pauncefote,  in  his  communica- 
tion of  April,  1890,  held  the  following  language: 

"  It  has  been  admitted  from  the  commencement  that  the  sole 
object  of  the  negotiation  is  the  preservation  of  the  fur-seal  species 
for  the  benefit  of  mankind,  and  that  no  considerations  of  advantage 
to  any  particular  nation  or  of  l>enefit  to  any  private  interest  should 
enter  into  the  question.'^ 


BERING    SEA    ARBITRATION.  9 

In  a  dispatch  under  date  of  May  22,  1890,  Lord  Salisbury  wrote  : 

"  Her  Majesty's  Government  would  deeply  regret  that  the  pursuit 
of  fur-seals  on' the  high  seas  by  British  vessels  should  involve  even 
the  slighest  injury  to  the  people  of  the  United  States.  If  the  case 
be  proved,  they  will  be  ready  to  consider  what  measures  can  be 
properly  taken  for  the  remedy  of  such  injury,  but  they  wotild  be 
unable  on  that  ground  to  depart  from  a  principle  on  which  free  com- 
tnerce  on  the  high  seas  depends. 

For  the  purposes  of  the  following  discussion  it  is  not  pretended 
that  the  exploded  doctrine  of  mare  clausum  should  be  installed  in 
place  and  power  to  protect  an  interesting  and  valuable  species  of 
animals.  The  doctrine  o{  mare  liberum,  as  expounded  by  Grotius, 
need  not  be  imj^eached;  but  the  doctrine  of  7?iare  liberum  is  itself 
a  juristic  conquest — a  conquest  which  in  the  progress  of  juridical 
ideas  among  the  nations  of  the  earth  has  been  slowly  gained  over 
the  doctrine  o{  mare  clausum  as  formerly  asserted  by  Great  Britain, 
Spain,  and  Portugal.  The  modern  doctrine  is  juristic  in  its  genesis, 
and  therefore  cannot  come  in  conflict  with  the  juristic  rights  of  the 
United  States,  if  they  have  any,  in  the  Alaskan  seal  herds  found  on 
the  high  seas.  The  rationale  of  the  doctrine  oi  mare  liberum  is  well 
summed  up  by  Hall  when  he  says:  "  It  is  commonly  stated  that 
the  sea  cannot  be  occupied,  it  is  indivisible,  inexhaustible,  and  pro- 
ductive, so  far  as  it  is  productive  at  all,  irrespectively  of  the  labor  of 
man  ;  it  is  neither  physically  susceptible  of  allotment  and  appropria- 
tion, nor  is  there  the  reason  for  its  appropriation  which  induced 
men  to  abandon  the  original  community  of  goods."  -i^ 

But  the  Government  of  the  United  States  maintains  that  the  Ber- 
ing sea,  so  far  as  it  is  "productive"  of  x-llaskau  seals,  is  not  now 
and  will  not  long  remain  a  nursery  of  seals  ^^  irrespectively  of  the 
labor  of  many  Much  of  labor  has  been  expended  by  the  United 
States  for  the  safe  guarding  of  the  seals  in  their  breeding  places. 
The  sea  has  been  patrolled  by  American  cruisers  for  the  protection 
of  the  seal  herds.  A  "close  season  "  has  been  concerted  between 
the  governments  of  the  United  States  and  Great  Britain  for  the 
restriction  of  seal  slaughter;  and  it  is  because  the  permanent  pro- 
tection of  the  seal  herds  calls  for  international  action  beyond  the 
maritime  jurisdiction  of  the  United  States  that  the  arbitration  of  a 
mixed  commission  has  been  invoked,  to  the  end  that  by  its  verdict 

*  Hall :  International  lyaw,  p.  148. 


10  COLUMBIAN   UNIVERSITY   STUDIES. 

the  "  important  element  of  finality  maybe  secured"  as  between 
the  two  governments  most  immediately  concerned,  and  to  the 
further  end  tliat  a  firm  basis  may  be  laid  for  the  lasting  settlement 
of  the  question  by  providing  for  the  adhesion  of  other  govern- 
ments. 

To  the  writer  of  this  paper  it  does  not  seem  that  the  United 
States,  in  the  purchase  of  x\laska  from  Russia,  bought  along  with  it 
a  mare  clausum  in  the  Bering  sea.  The  United  States  could  not 
buy  more  tlian  Russia  had  to  sell.  But  the  United  States  could\iwy 
from  Russia  a  right  to  the  undisturbed  enjoyment  of  the  Alaskan 
seal  usufruct  on  sea,  as  well  as  on  land,  for  this  is  a  right  which 
Russia  enjoyed  and  a  right  which,  attaching  as  it  does  to  animals 
having  the  animus  revertendi,  is  rooted  in  a  rule  of  reason  and  of  law 
as  old  as  the  property  law  of  historical  jurisprudence.  The  rule 
was  old  in  the  days  of  Gaius.  He  says  it  is  one  which  in  his  day 
had  been  "handed  down  "  as  settled  law. 

It  has  been  well  said  by  Sir  Travers  Twiss  that  "  the  right  of 
fishery  comes  under  different  considerations  of  law  from  the  right 
of  navigation,  as  the  right  of  fishery  in  the  open  sea  within  certain 
limits  [the  three-mile  zone]  may  be  the  exclusive  right  of  a  nation. 
The  nsus  of  all  parts  of  the  open  sea,  in  respect  of  navigation,  is 
common  to  all  nations,  but  the  fmctus  is  distinguishable  in  law 
from  the  nsus,  and,  in  respect  of  fish  or  zoophiles  or  fossil  sub- 
stances, may  belong  in  certain  parts  [that  is,  within  the  aforesaid 
zone]  exclusively  to  an  individual  nation."--^ 

Sir  Travers  elsewhere  argues  that  the  right  of  fishing  in  the  open 
sea  is  common  to  all  nations  "  on  the  same  princi])le  which  sanc- 
tions the  common  right  of  navigation,  namely,  that  he  who  fishes  in 
the  open  sea  does  no  injury  to  any  one,  and  the  products  of  the  sea  are 
in  this  respect  inexhaustible  and  sufficient  for  all.'" \  It  would  be 
impossible  to  conceive  a  negative  pregnant  more  emphatic  against 
the  assumed  right  of  fur-seal  capture,  for  such  capture  of  Alaskan 
seals  works  a  positive  "  injury  "  to  the  United  States,  and  tends  to 
exhaust  a  supply  which  is  not  "  inexhaustible  "  and  not  "  sufficient 
for  all."  The  freedom  of  the  ocean  has  no  more  vehement  assertor 
than  Calvo,  yet  he  admits  that,  by  international  convention,  there 
may    be    partial   "derogations"    from    that    freedom    wiien    such 

*  Twiss  :  Law  of  Nations  (in  Time  of  Peace),  311. 
t  Twiss  :  Law  of  Nations  (in  Time  of  Peace),  300. 
I  Calvo:  Droit  International,  481. 


BERING    SEA    ARBITRATION.  11 

"  derogations  "  are  "  dictated  l)y  a  maritime  interest  of  first  order, 
notably,  the  exploitation  of  coast  fislieries  of  an  exceptional  nature. ' ' 
And  what  can  be  more  "exceptional  "  than  the  exploitation  of  the 
"  maritime  interest  "  which  the  United  States  have  [n/ur-seals  born 
on  their  own  soil  ? 

As  the  animus  revertendi  insures  the  owner's  property  right  in 
inclosed  bees,  when  they  have  swarmed  (in  such  way  as  to  be 
identifiable)  on  the  land  of  a  neighbor,  though  they  cannot  there 
be  reclaimed  without  "trespass,"  it  would  seem  not  unreasonable 
to  hold  that  the  owner's  property  right  in  inclosed  seals  should  be 
secured  by  their  animus  revertendi  during  the  period  of  their  pelagic 
migrations,  since,  if  they  are  of  right  reclaimable  at  all,  they  are 
there  reclaimable  without  liability  to  indictment  for  "trespass." 
Writs  will  not  run  either  for  the  action  in  trover  or  of  trespass 
on  the  case  within  the  "no-man's-land"  of  the  inappropriable 
ocean  ;  but  the  rules  of  right  between  two  nations  ought  to  be  essen- 
tially the  same  as  the  rules  of  right  between  two  individuals,  how- 
ever different  may  be  the  rules  of  procedure.  Though  our  Archbold 
cannot  help  us  here,  the  great  maxim,  '■^Honesfe  vivere ;  Alterum 
7ion  lcede7-e ;  Suum  cuique  tribuere,'^  should  certainly  be  as  much  the 
breviary  of  International  Law  in  this  year  of  Grace  as  it  was  of 
Roman  Law  under  the  Caesars. 

The  right  of  each  nation  to  claim  jurisdiction  over  its  territorial 
waters  to  the  extent  of  a  marine  league  from  the  coast  line  is  vin- 
dicated by  Mr.  Henry  Sidgwick,  among  other  reasons,  on  tiie 
ground  that  "each  country  should  have  the  power  of  regulating 
the  fisheries  on  its  coast,  to  prevent  wasteful  exhaustion  of  the  sup- 
ply.'"'^-  But,  to  prevent  the  "wasteful  exhaustion"  of  the  seal 
supply,  it  is  as  necessary  that  seals  should  be  protected  in  their 
pelagic  migrations  as  in  their  l)reeding  places;  and  the  qualified 
proi)erty  enjoyed  by  the  United  States  in  the  Alaskan  seal  herds,  by 
virtue  of  their  animus  revertendi,  would  seem  to  justify  the  claim 
that  that  right  should  be  as  sacred  under  international  as  under 
municipal  law.  It  was  held  under  the  Civil  Law  that  whether  an 
animal  has  lost  its  animus  revertendi  or  not  is  a  cjuestion  of  fact, 
and  that  he  who,  while  the  animus  still  persists,  seeks  to  dislodge  it 
by  a  premature  capture  has  committed  upon  that  animal  an  act  of 
theft. t     It   is  on   the   fixed   quality  of  this  animus  in  the  Alaskan 

*  Heury  Sidgwick  :  Elements  of  Politics,  p.  241. 

tGliick:  Paudecteu,  Sen  xli,  xlii,  p.  46 


12  COLUMBIAN    UNIVERSITY    STUDIES. 

seals,  and  on  the  property  right  which  it  authenticates  so  long  as 
it  persists,  that  the  owner,  it  would  seem,  may  base  a  reasonable 
claim  that  his  property  right  in  them  shall  not  be  divested  by  a 
premature,  and  therefore  an  unlawful,  capture.  And  the  question  of 
fact  as  to  the  persistency  of  the  animus  does  not  depend  at  all  on 
the  distance  to  which  the  normal  excursions  of  the  animal  may  ex- 
tend in  its  outgoings  and  incomings.  This  distance,  if  great,  only 
embarrasses  the  vindication  of  the  property  right  by  embarrassing 
the  pursuit  of  the  animal.  It  does  not  extinguish  the  right,  if  the 
animus  continues  to  be  lodged  in  the  animal.  In  the  case  of  the 
carrier-pigeon,  the  distance  to  which  he  extends  his  flight,  while 
preserving  the  animus  revertendi,  does  but  increase  his  value.  Tiie 
honey-bee,  the  carrier-pigeon,  and  the  Alaskan  seal  have  each  a 
radius  of  migration  according  to  their  kind.  Ease  or  difficulty  of 
perquisition  in  the  case  of  estrays  affects  legal  remedies  rather  than 
legal  rights,  just  as  formerly  in  the  Isle  of  Man  it  was  held  to  be  no 
felony  to  take  away  an  ox  or  an  ass,  but  only  a  trespass,  because  of 
the  difficulty  in  that  little  territory  of  either  concealing  or  carrying 
off  such  big  quadrupeds  ;  while  to  steal  a  pig-  or  a  fowl  was  punish- 
able with  death,  because  the  facility  with  which  that  crime  could  be 
committed  seemed  to  require  a  strong  deterrent.* 

To  hold  that  the  animus  revej'iendi  of  Alaskan  seal  herds  is  sacred 
from  assault  within  three  miles  from  the  shore,  but  is  open  to  ma- 
rauders' violence  at  a  distance  one  mile  further  (while  the  animus 
revertendi  remains  just  as  strong  in  the  remoter  as  in  the  nearer 
stretches  of  their  migrations),  is  to  play  fast  and  loose  with  this  rule 
of  right,  and  so  to  convert  it  into  a  delusion  and  a  snare.  Tlie  seal 
husbandman  who  should  learn  that  the  animus  revertendi  of  bees 
will  protect  the  owner's  right  in  them  indefinitely,  even  when  it 
runs  on  land  where  another  has  the  ius  dominii,  Init  that  in  tlie  case 
of  seals  it  will  not  run  on  salt  water  more  than  three  miles,  though 
outside  of  that  limit  wohoAy  \i^.%  d.  ius  do jninii  \.o  plead  against  it, 
(and  though,  too,  it  is  just  as  strong  at  a  distance  of  four  miles  or 
four  hundred  miles  outside  of  that  limit  as  at  a  distance  of  one  mile 
inside  of  the  limit),  might  be  sorely  tempted  to  commit  even  a  worse 
irreverence  than  that  of  Mr.  Bumble  when,  in  his  legal  discomfiture, 
he  exclaimed,  "  The  Law  is  a  ass,  a  idiot !  " 

For  the  purposes  of  this  discussion  it  is  not  ])retended  that  the 
Government  of  the  United   States,  by  its  unilateral  act,  has  the 

*  4  Stephen's  Commentaries,  io8. 


BERING   SEA    ARBITRATION.  13 

right  to  declare,  as  a  dictum  of  International  Law,  that  the  capture 
of  i)elagic  seals  is  contra  bonos  mores.  Tliat  maxim  has  a  definite 
meaning  in  law,  and  cannot  be  stretched  to  cover  newly  emergent 
cases  in  international  ethics.  "Just  as  the  legal  obligations  of  an 
individual  are  defined,  not  by  the  moral  ideal  recognized  in  the 
society  to  which  he  belongs,  but  by  the  laws  in  force  within  it,  so 
no  State  can  have  the  right  to  demand  that  another  State  shall 
act  in  conformity  with  a  rule  in  advance  of  the  practical  morality 
which  nations  in  general  have  embodied  in  the  law  recognized  by 
them."*  Nations  in  general  have  not  pronounced  the  capture  of 
seals  on  the  high  seas  to  be  contra  bonos  mores.  The  reply  of  Lord 
Salisbury  under  this  head  seems  to  be  conclusive,  but  it  is  a  reply 
which  moves,  and  was  intended  to  move,  in  static  law  alone.  The 
argument  of  Mr.  Blaine  moves  in  what  we  may  call  the  dynamics  of 
International  Law,  because  it  moves  in  the  direction  of  that  "  moral 
ideal  "  which  is  the  perpetual  point  de  7nire  of  an  advancing  civili- 
zation— a  moral  ideal  accepted  by  Lord  Salisbury  himself  when  he 
says  that  "  Her  Majesty's  Government  would  deeply  regret  that  the 
"  pursuit  of  fur-seals  on  the  high  seas  by  British  vessels  should  in- 
"  volve  even  the  slightest  injury  to  the  people  of  the  United  States." 
That  the  capture  of  mother  seals  heavy  with  young  is  as  morally 
barbarous  as  it  is  economically  wasteful  would  seem  to  be  clear  in 
ethics.  Under  the  Mosaic  Law  it  was  forbidden  to  take  the  mother 
bird  with  her  young,  if  she  were  found  sitting  upon  her  fledglings 
or  upon  eggs  "in  a  nest  on  the  ground  or  in  any  tree."  f  The 
motive  of  the  law  was  partly  economic  (to  prevent  the  extinction  of 
the  bird  species)  and  partly  humanitarian  (to  prevent  cruelty  to 
animals  and  the  human  brutalization  which  such  cruelty  engenders). 
The  economic  motive  of  the  law  is  so  obvious  that  it  was  caught 
up  and  enshrined  in  the  popular  verse  of  the  Carmen  Monitorium, 
ascribed  to  the  Greek  poet  Phocylides,  but  commonly  supposed  to 
have  been  written  under  his  assumed  name,  in  the  fourth  century  of 
the  Christian  era.;{;  The  municipal  law  of  the  civilized  world  in- 
hibits the  slaughter  of  game  during  the  breeding  season. 

*Hall:  International  Law,  p.  5. 

t  Deuteronomy,  xxii,  6,  7. 

jGaisford  :  Poetae  Minores  Grseci,  vol.  i,  p.  451  : 


14  COLUMBIAN    UNIVERSITY    STUDIES. 

For  the  purposes  of  this  discussion  it  is  not  pretended  that  an 
assimilated  "action  in  trover"  should  lie  in  the  forum  of  Inter- 
national Law  against  the  American  or  Canadian  seal  hunter  who 
spears  an  Alaskan  seal  on  the  high  seas  and  converts  it  into  his 
private  property  under  color  of  the  law  of  occupation  ;  but  it  is 
hoped  that  the  same  property  right  which  in  the  case  of  honey-bees 
has  been  vindicated  by  the  Municipal  Law  of  the  civilized  world, 
and  the  same  property  right  which  in  a  suit  at  Common  Law  has 
been  vindicated  even  in  the  case  of  dog-whelps,  musk-cats,  and 
monkeys — "  because  they  are  merchandise  "*  — may  now  be  found 
capable  of  substantiation  and  protection  under  the  aegis  of  inter- 
national convention.  The  Alaskan  seals  find,  for  the  time  being, 
a  partial  safeguard  under  the  shield  of  the  vwdiis  vivendi  concerted 
between  the  two  governments.  It  is  simply  proposed  to  put  that 
safeguard  under  the  terms  of  a  permanent  and  effective  international 
arrangement. 

As  has  been  well  said  by  the  German  jurist  Jhering,  "  he  who 
"battles  for  constitutional  and  international  law  is  none  other  than 
"he  who  battles  for  private  law;  the  same  qualities  which  dis- 
"  tinguish  him  when  struggling  for  his  rights  as  an  individual 
"accompany  him  in  the  battle  for  political  liberty  and  against  the 
"  external  enemy.  What  is  sowed  in  private  law  is  reaped  in  public 
"  law  and  the  law  of  nations.  In  the  valleys  of  private  law,  in  the 
"very  humblest  relations  of  life,  must  be  collected,  drop  by  drop, 
"so  to  speak,  the  forces,  the  moral  capital,  which  the  State  needs 
"  to  operate  on  a  large  scale  and  to  attain  its  ends."  f 

As  civilization  advances,  the  law  of  occupation  recedes. |  That 
law  finds  to-day  its  highest  theatre  in  \.\\(t  occiipaiio  belllca  of  "  grim- 
visaged  war,"  but  even  grim-visaged  war  has  learned  to  "smooth 
its  wrinkled  front  "  in  the  presence  of  private  property.  The  juris- 
prudence of  the  world  should  keep  pace  with  the  prudence  of  the 
world.  Among  writers  on  the  philosophy  of  law  there  is  none  who 
is  more  inclined  to  glorify  the  law  of  Force  than  Adolph  Lasson  ; 
yet  Lasson  is  quick  to  acknowledge  the  diminishing  sway  of  the 
Law  of  Occupation.  To  this  effect  he  says  that  as  the  domain  of 
positive  law  widens,  the  domain  of  the  law  of  occupation  must  needs 

*  3  Levinz,  336. 

t  Jhering  :  The  Struggle  for  Law,  p.  93. 

JSee  Gliick  :  Panrlecten,  Ser.  xli,  xlii,  pp.  29,  30,  for  an  exj^ositiou  of 
this  self-evideut  thesis. 


BERING   SEA    ARBITRATION.  15 

shrink  into  a  narrower  and  narrower  comi)ass.''"  And,  at  bottom, 
under  the  circumstances  and  conditions  of  the  arbitration  agreed 
upon,  the  question  now  pending  between  the  United  States  and 
Great  Ihitain  with  regard  to  tlie  fur-seals  of  Alaska  is  this,  Will  the 
property  rights  of  the  civilized  world  and  the  interests  of  a  growing 
civility  among  nations  be  better  subserved  by  remitting  the  capture 
of  seals  on  the  high  seas  to  the  primeval  law  of  occupation,  or  by 
putting  that  law  under  the  restrictions  of  international  equity  and 
of  a  i)rogressive  humanity? 

Let  it  here  be  noted,  says  my  learned  colleague.  Prof.  Henry  E. 
Davis,  that  "this  is  the  question  only  under  the  circumstances  and 
•'  conditions  of  the  arbitration  agreed  upon  ;  for,  the  arbitration 
"  out  of  the  account,  this  statement  of  the  question  would  yield 
"  too  much  on  the  part  of  the  United  States.  The  relation  of  the 
"  United  States  to  the  seals  is  really  analogous  to,  if  not  identical 
"  with,  that  of  the  individual  who  by  domestication  of  animals/^r^ 
"  naiurce,  such  as  bees,  has  acquired  in  them  a  recognizable  and  ad- 
"  mitted  property.  In  the  case  of  animals /tv^  naturce  domesti- 
"  cated  by  man  the  property-right  is  clear.  In  the  case  of  the  seal 
"  we  have  an  animal  juridically /<?;-^ //rt-///;??  in  a  qualified  sense 
"only:  for  its  animus  revertejidi  is  matter  of  nature,  not  of  art, 
"and  is,  besides,  territorially  circumscribed  in  operation;  that  is 
"  to  say,  in  the  case  of  the  seal  the  animus  revertendi  has  and 
"  can  have  operation  only  in  respect  of  a  territory  the  admitted 
"  property  and  in  the  conceded  dominion  of  the  United  States.  It 
"  is  as  though  we  had  a  species  of  the  bee  engendered,  and  capable 
"  of  being  engendered,  upon  a  given  spot  only,  and  by  force  of 
"its  nature  ineradicably  instinct  with  the  disposition — nay,  under 
"  the  necessity — of  returning  to  that  spot.  In  such  a  case  the  ius 
"  hominis  really  gives  i)lace  to  the  ius  dominii,  and  the  animal  may 
"  justly  be  said  to  be  no  more  res  nuUius  than  the  tree  and  its  fruit 
"grown  and  growing  on  the  soil  of  an  individual  proprietor. 

"The  question,  arbitration  ai)art,  might  then  fairly  be  put  thus: 
"  Given  the  seal,  with  its  territorially  circumscribed  animus  rever- 

*Lassou:  Rechtsphilosophie,  606:  "  Mit  dem  Rechtszustaude  erst 
tritt  die  Forderung  eiii.  dass  fortan  alle  Eigeuthunisveranderung  auf 
rechtliche  Weise  zugehe,  und  dass  Eigenthuin  erworben  uud  verloreu 
werde  iiur  in  den  voui  Rechte  ausdriicklich  vorgescbriebenen  Formen, 
die  sich  dem  Principe  der  Gerechtigkeit  nioglichst  anzuniihern  trachten. 
Auf  engsten  Rauni  beschrankt  bleibt  fortan  die  Occupation,  die  blosse 
Aneignun.ar  der  Sache  aus  eigenem  Belieben." 


'■^  OF  CAi 


^'^'^siTY  Of  cAimm 


16  COLUMBIAN    UNIVERSITY    STUDIES. 

"  tendi  as  part  of  its  nature, — indeed,  part  of  tlie  animal,  as  much 
"so  as  its  instinct  to  maintain  its  life  by  food — is  such  an  animal 
"  juridically/^;-^  natu7'ce  ?  or  is  it  not,  by  force  of  this  very  part  of 
"  its  being,  a  subject  of  property /d-r  se  ?  '" 

"But,  as  above  stated,  the  question,  in  view  of  the  arbitration, 
"  may,  for  the  purposes  of  the  argument,  be  conceded  .to  be  as  first 
"  expressed.     And,  the  question  thus  put,  what  is  its  answer?  " 

It  is  not  understood  that  the  Government  of  the  United  States 
has  waived  any  of  its  property  rights  in  Alaskan  seals  preliminarily 
to  the  impending  arbitration.  It  has  simply  agreed  to  take  the 
judgment  of  a  mixed  commission  on  the  foundation,  nature,  and 
extent  of  its  rights,  and  expects,  of  course,  to  abide  by  that  judg- 
ment. It  is  certain  that  the  author  of  this  paper  has  not  intended 
to  abate  those  rights  when,  to  the  extent  of  this  argument,  he  seeks 
to  identify  them  with  the  obligations  and  interests  of  that  closer 
intercourse  among  civilized  nations  which  seems  to  call  for  their 
free  acknowledgment. 

The  ius fruendi  oi  property  in  land  carries  with  it  a  right  to  the 
products  of  the  land.  The  ius  fruendi  of  property  in  animals  carries 
with  it  a  right  to  the  natural  increase  of  such  animals  ;  and  not  to 
the  natural  increase  alone,  but  also  to  any  increase  which  may  come 
from  what  the  Roman  lawyers  have  called  the  right  of  "Accession." 
The  maxim  of  Accession  is  ^' Accessio  cedat  principaW'' — "Let 
the  accessional  thing  follow  the  principal  thing."*  The  doc- 
trines of  Accession,  says  Blackstone,f  "are  implicitly  copied  and 
adopted  by  our  Bracton  in  the  reign  of  King  Henry  III,  and  have 
since  been  confirmed  by  many  resolutions  of  the  courts."  Wild 
pigeons  joining  a  flock  of  inclosed  pigeons  and  wild  bees  joining  a 
swarm  of  inclosed  bees,  says  Ortolan,  are  gathered  to  the  inclosed 
animals  under  the  law  of  accession,  and  are  no  more  open  to  occupa- 
tion than  the  animals  originally  inclosed. |  The  law  of  acces- 
sion, we  see,  runs  with  the  law  of  occupancy,  with  the  rule  of 
animus  revertendi,  and  with  the  law  of  usufruct,  while  the  comment  of 

*  Digest,  xxxiv,  2,  19,  §  13. 

t  2  Blackstoue,  404. 

%  I  Ortolan  :  Explication  Historique  des  lustituts,  Liv.  ii,  366,  367  : 
"Ainsi,  que  des  pigeons,  que  des  abeilles  sauvages,  attires  par  mes  pioeons, 
par  mes  abeilles  domestiques,  viennent  se  joindre  a  eux  et  s'etablir  dans 
mon  colombier,  dans  mes  ruches,  menie  a  mou  insu,  ces  animaux,  et  le 
produit  qu'ils  y  douneront,  m'appartieunent ;  celui  qui  viendrait  les  y 
prendre  commettrait  uu  vol." 


BERING    SEA    ARBITRATION.  17 

Ortolan  meets  very  neatly  the  plea  of  the  fur-seal  hunter  who  should 
allege  that  the  seal  which  he  speared  in  the  Bering  sea  was  probably 
a  "  foreign  "  seal.  There  are,  it  is  understood,  no  foreign  fur-seals 
in  the  waters  covered  by  the  pending  arbitration,  and  if  there  were 
they  would,  when  found  in  the  company  of  the  Alaskan  seal  herds, 
be  gathered  to  those  herds,  and  would  be  as  much  the  property  of 
the  Alaskan  seal  husbandman  as  the  members  of  the  brood  which 
originally  started  out  from  the  Pribyloff  islands.  And,  when  we 
consider  the  tie  which  binds  the  Alaskan  seal  herds  to  the  Alaskan 
soil,  it  seems  proper  to  ask  whether  these  herds  are  more  appurte- 
nant to  the  land  in  which  they  have  their  native  home  and  to 
which  they  have  a  fixed  habit  of  return,  or  whether  they  are  more 
appurtenant  to  the  seas  in  which  they  make  excursions?  And 
whether,  too,  in  point  of  public  and  of  private  economy,  the  petty 
interest  of  the  pelagic  sealer  or  the  vast  interest  of  the  United  States 
in  the  seal  herds  should  be  held  "  the  princi})al  thing  "  in  this  great 
concernment?  To  ask  such  questions  is  to  answer  them.  The  seal 
husbandry  of  the  pelagic  hunter  is  vagrant,  casual,  and  desolating. 
The  seal  husbandry  of  the  United  States  is  stable,  provident,  and 
conservative,  because  it  is  based  on  property  riglits  resulting  from 
ownership  of  the  soil  on  which  the  seals  breed,  from  ownership  of 
the  herds  on  that  soil,  from  control  over  the  herds  within  "the 
three-mile  zone,"  and  from  the  legal  rule  of  aniiiiiis  rcvertcudi, 
which  ties  them  juridically  to  that  soil.  The  primeval  law  of  occupa- 
tion does  not  extend,  as  has  been  already  said,  to  animals  which 
are  the  subjects  of  prior,  though  qualified,  occupation.  To  place 
amphibious  animals,  like  seals,  on  the  same  level  as  creatures y^?;-^ 
natwa  born  and  living  in  the  sea,  is  as  illogical  and  unscientific 
as  in  point  of  juristic  reason  it  is  violent  and  inequitable. 

It  is  at  once  a  truism  and  a  commonplace  to  say  that  progress  in 
the  social,  economical,  and  political  relations  of  the  human  race 
must  of  necessity  work  with  a  constant  reformative  power  on  the 
body  of  law  from  age  to  age.  It  is  this  dynamic  conception  of  the 
evolutionary  process  involved  in  the  world's  law-making  which 
gives  such  a  practical  value  to  the  study  of  the  world's  historical 
and  comparative  jurisprudence ;  for  it  is  only  by  such  a  philosoph- 
ical study  that  we  can  attain  to  the  grounds  of  a  scientific  forecast 
where  new  social,- civil,  and  international  situations  seem  to  call  for 
new  jural  arrangements.  The  civilized  nations  of  the  earth  form 
to-day  a  close  society.  Ubi  societas  tin  ins.  Ubi  ins  ibi  obligatio. 
The  Law  of  Nations,  it  is  true,  has  neitlier  law-giver  nor  supreme 


18  COLUMBIAN    UNIVERSITY    STUDIES. 

judge;  but  it  has  its  own  peculiar  genius  and  its  own  peculiar  sanc- 
tions. "  Its  organ  and  regulator  is  Public  Opinion.  Its  supreme 
tribunal  is  History,  which  forms  at  once  the  rampart  of  justice  and 
the  Nemesis  by  which  injustice  is  avenged."  In  the  moral  prepara- 
tions which  precede  it,  the  Law  of  Nations  comes  slowly  and  comes 
from  afar,  but  critical  conjunctures  are  often  the  birth-pangs  of  its 
new  deliverances;  for  though  national  morality  is  but  the  modified 
reflex  of  private  morality,  and  though  international  morality  is  but 
the  modified  reflex  of  national  morality,  it  is  important  to  observe 
that  when  ameliorations  of  moral  conduct  are  demanded  among 
civilized  nations  they  may  often  be  more  readily  and  speedily 
secured  than  the  ameliorations  of  moral  conduct  which  are  de- 
manded among  individual  men  in  the  figure  of  civil  society.  So 
various,  divergent,  and  mutable  are  the  free  wills  of  individual  men 
that  it  is  impossible  to  concert  among  them  a  forward  moral  move- 
ment, along  the  whole  line,  in  the  bosom  of  any  large  civil  com- 
munity. The  community  of  civilized  nations,  on  the  other  hand, 
is  small  in  its  membership  ;  the  relations  of  independent  states  to 
each  other  are  comparatively  simple  ;  their  actions  and  interactions 
move  on  the  broader  lines  of  public  policy,  and  move,  too,  in  the 
sunlight  of  publicity.  Where  new  moral  and  legal  departures  are 
required  in  international  intercourse,  they  may  come  suddenly  with 
the  opportunism  which  paves  the  way  for  them.  And  they  will 
come  to  stay  in  a  Christian  civilization,  because  they  represent  the 
sovereignty  of  moral  ideas,  and  because  they  spring  from  a  growing 
faith  in  the  moral  order  of  the  universe. 

It  will  be  seen  that  this  whole  discussion  has  revolved  around  a 
single  point  of  law,  which,  if  well  taken,  would  seem  to  be  determi- 
native of  the  main  issue  joined  in  the  "Bering  Sea  Arbitration." 
A  doctrine  of  law  does  not  vary  with  the  magnitude  of  the  issues 
that  turn  on  it.  If  it  is  sufficient  to  reclaim  a  flock  of  pigeons  it 
ought  to  be  sufficient  to  reclaim  a  herd  of  seals.  If  it  be  good  as 
between  neighbors  under  municipal  law,  it  ouglit  to  be  good  as 
between  neighbor  nations  under  international  law.  No  attempt 
has  here  been  made  to  argue  the  American  case  or  to  traverse  the 
British  case  at  any  other  point.  Indeed,  the  student  of  Interna- 
tional Law  has  nothing  to  do  with  the  American  case  as  such  or 
with  the  British  case  as  such.  He  seeks  simply  to  find  in  the  pend- 
ing litigation  the  rule  of  right  which  should  obtain  in  a  government 
of  the  nations,  by  the  nations,  and  for  the  nations,  to  the  end  that 
righteousness  may  be  as  much  the  law  of  tlie  sea  as  the  law  of  the  land. 


The  Columbian  University, 

WASHINGTON,  D.  C. 


Collegiate  and  Professional  Instruction  is  given  in 
the  Columbian  University  in  five  departments  :  The 
Columbian  College,  the  National  Medical  College, 
the  School  of  Dentistry,  the  Columbian  University 
Law  School,  and  the  Corcoran  Scientific  School. 

Besides  the  foregoing  higher  departments,  the 
University  has  under  its  management  a  Preparatory 
School,  in  which  students  are  prepared  for  College, 
for  the  Military  Academy  at  West  Point,  or  for  the 
Naval  Academy  at  Annapolis. 

For  catalogues  address  The  Registrar  of  the  Uni- 
versity. 

For  other  information  address  The  President  of 
the  University, 


The  Columbian  University, 

WASHINGTON,  D.  C. 


m 


THE    LAW    FACULTY. 

JAMES  C.  WELLING,  IvL.D.,  President, 
And  Professor  of  Public  and  Private  International  Law. 

The  Hon.  JOHN  M.  HARLAN,  LL.D., 

(Associate  Justice  of  the  Supreme  Court  of  the  United  States.) 

Professor  of  the  Constitutional  Jurisprudence  of  the    United  States,  of 

the  Law  of  Domestic  Relations,  of  Commercial  Paper,  and  of  Torts. 

The  Hon.  WALTER  S.  COX,  LL.D., 

(Associate  Justice  of  the  Supreme  Court  of  the  District  of  Columbia. ) 

Professor  of  the  Law  of  Real  and  Personal  Property,  of  Contracts,  and 

of  Crimes  and  Misdemeanors. 

The  Hon.  WILLIAM  A.  MAURY,  LL.D., 
(Assistant  Attorney-General  of  the  United  States.) 
Professor  of  Equity  Jurisprudence,  of  Common  Law  and  Equity  Plead- 
ing, and  of  the  Law  of  Evidence. 

The  Hon.  DAVID  J.  BREWER,  LL.D., 

(Associate  Justice  of  the  Supreme  Court  of  the  United  States. ) 

Professor  of  the  Law  of  Corporations. 

Prof.  G.  H.  EMMOTT,  A.M.,  LL.M., 

(of  the  Johns  Hopkins  University,) 
Lecturer  on  the  Civil  Law. 

HENRY  E.  DAVIS,  A.M.,  LLM., 

(Sometime  Assistant  Attorney  of  the  District  of  Columbia.) 

Lecturer  on  the  History  of  Law. 

The  Hon.  AUGUSTUS  S.  WORTHINGTON,  LL.B., 

(Sometime  District  Attorney  of  the  United  States.) 

Lecturer  on  Legal  Bibliography  and  the  Use  of  Authorities  in  Court. 

WILLIAM  F.  MATTINGLY,  Esq., 

(of  the  Washington  Bar, ) 

Lecturer  on  Practical  Commercial  Law, 

The  Hon.  WILLIAM  EDGAR  SIMONDS,  A.M.,  LL.B., 

(United  States  Commissioner  of  Patents.)) 

Professor  of  the  Law  of  Patents. 

The  Hon.  ANDREW  C.  BRADLEY, 

(Associate  Justice  of  the  Supreme  Court  of  the  District  of  Columbia.) 

Lecturer  on   Criminal  Law,  and  on   Criminal   Pleading   and   Practice. 

WILLIAM  G.  JOHNSON,  LL.M., 

(of  the  Washington  Bar.) 

Professor  of  Legal  Catechetics,  and  Judge  of  Moot  Court. 


Date 

Due 

.Wi  1 

^  m 

Y  FACILITY 

0 

1 

MM 

Library  Bureau  Cat,   No.  1137 

